NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 14, 2010*
Decided April 28, 2010
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 09‐3763
McKEITH PEARSON Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 08 C 5652
UNITED STATES OF AMERICA
Defendant‐Appellee. Amy J. St. Eve,
Judge.
O R D E R
McKeith Pearson, a federal prisoner acting pro se, sought damages from the
government under the Federal Tort Claims Act (“FTCA”),
28 U.S.C. §§ 2671‐2680, among
other federal provisions, for the loss and destruction of personal property that Drug
Enforcement Agency (“DEA”) agents seized during a search of his home. The district court
*
After examining the briefs and the records, we have concluded that oral argument
is unnecessary. Thus, the appeal is submitted on the briefs and the records. See FED. R. APP.
P. 34(a)(2)(C).
No. 09‐3763 Page 2
dismissed all of his claims. Pearson argues on appeal that the court erred in dismissing his
FTCA claim. We affirm.
In 2000 Pearson was indicted on drug and conspiracy charges in the Northern
District of Florida; a warrant from that district was used to effectuate his arrest in Chicago.
His indictment included an allegation of forfeiture to the government of his interest in
property derived from or used to commit the alleged criminal acts. See
21 U.S.C. § 853(a)(1)‐
(2). DEA agents searched his Chicago home and seized several items, including two
computers (which Pearson valued at a combined $8,000), software ($800), and a digital scale
($400). The government used those items as evidence during its prosecution of Pearson in
Florida. He pleaded guilty in 2001 and received a 30‐year sentence.
In 2005 Pearson filed a motion in the Northern District of Illinois for the return of the
property seized from his home five years earlier. The government asserted that the
property had been disposed of or destroyed and suggested that he file an administrative
tort claim with the DEA if he believed compensation was warranted. In light of the
government’s assertion, the district court in 2006 dismissed Pearson’s motion as moot, and
he filed an administrative tort claim with the DEA in May 2007. When relief was not
forthcoming, he filed this suit in November 2008, alleging that the government had been
negligent in handling his property and that it had taken his property without compensating
him.
The district court dismissed Pearson’s suit for lack of subject‐matter jurisdiction and
for failure to state a claim.** See FED. R. CIV. P. 12(b)(1), (6). The court concluded that it
lacked jurisdiction over his FTCA claim because of
28 U.S.C. § 2860(c)—the “detention of
goods” exception to the FTCA’s waiver of sovereign immunity. This exception forecloses
FTCA claims arising from the unlawful detention of property by law enforcement officers,
including the DEA agents who seized Pearson’s property. See Ali v. Federal Bureau of Prisons,
552 U.S. 214, 228 (2008). Pearson argued that the Civil Asset Forfeiture Reform Act of 2000,
Pub. L. No. 106‐185,
114 Stat. 202 (“CAFRA”), amended the “detention of goods” exception
to allow claims like his that were based on a loss of property seized for the purpose of
forfeiture. See
28 U.S.C. § 2680(c)(1). But the court followed the reasoning of Foster v. United
States,
522 F.3d 1071, 1075, 1077‐79 (9th Cir. 2008), and concluded that CAFRA only “re‐
waived” sovereign immunity when law enforcement officers seized the property solely for
the purpose of forfeiture; seizure for any other purpose, or even for dual purposes including
forfeiture, was not enough to escape the “detention of goods” exception. Because DEA
**
Pearson’s failed claims under the Fifth Amendment and the Little Tucker Act,
28
U.S.C. § 1346(a)(2), are not at issue on this appeal.
No. 09‐3763 Page 3
agents seized Pearson’s property as evidence for his Florida prosecution, and not solely for
forfeiture, CAFRA could not save his claim. The court noted, moreover, that because
Pearson pleaded guilty to drug charges that were grounds for forfeiture under
21 U.S.C.
§ 853, his claim failed under
28 U.S.C. § 2680(c)(4), which foreclosed “re‐waiver” to a
claimant convicted of a crime for which his property was subject to forfeiture.
On appeal, Pearson challenges the dismissal of his FTCA claim. Section 2680(c)’s
“detention of goods” exception to the FTCA’s waiver of sovereign immunity bars claims
“arising in respect of . . . the detention of any goods, merchandise, or other property by any
officer of customs or excise or any other law enforcement officer.” But CAFRA carved out
an exception to the exception—a “re‐waiver” of sovereign immunity—that allows claims
based on injury or loss of property in the possession of law enforcement officers if four
conditions are satisfied:
(1) the property was seized for the purpose of forfeiture under any provision
of Federal law providing for the forfeiture of property other than as a sentence
imposed upon conviction of a criminal offense;
(2) the interest of the claimant was not forfeited;
(3) the interest of the claimant was not remitted or mitigated (if the property
was subject to forfeiture); and
(4) the claimant was not convicted of a crime for which the interest of the
claimant in the property was subject to forfeiture under a Federal criminal
forfeiture law.
§ 2680(c)(1)‐(4); see Ali v. Federal Bureau of Prisons,
552 U.S. 214, 221 (2008).
Pearson renews his argument that the government seized his property for the
purpose of forfeiture and that his claim therefore should have been permitted to go
forward. To support his contention, he cites the allegation of forfeiture in his indictment.
But, as the government argues, nothing in the indictment demonstrates that the DEA ever
intended to seek forfeiture of the seized property. The indictment did not specify what was
seized and simply stated that the property derived from proceeds of the crimes or used to
commit the crimes could be forfeited. According to the docket from Pearson’s criminal case,
no forfeiture proceedings were ever instituted against the property. Even if we assumed
that the DEA seized Pearson’s property for the purpose of forfeiture, he cannot claim that
No. 09‐3763 Page 4
his property was seized only for the purpose of forfeiture; his own complaint states that the
property was seized as evidence. Foster, then, compels dismissal of his claim.
And even if we were to conclude that CAFRA “re‐waiver” could occur when
forfeiture was merely a purpose—rather than the only purpose—of a seizure, Pearson’s
claim would still fail because of § 2680(c)(4). As the district court correctly noted, his guilty
plea provided grounds for forfeiture under
21 U.S.C. § 853, which directs a court at
sentencing to order forfeiture of a defendant’s property. His claim therefore falls outside of
CAFRA’s exception. See Diaz v. United States,
517 F.3d 608, 613‐14 (2d Cir. 2008); Adeleke v.
United States,
355 F.3d 144, 154 (2d Cir. 2004).
Accordingly, we AFFIRM the judgment of the district court.
